STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
RONALD O ROGERS, Employe
WISCONSIN KNIFE WORKS INC , Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001884JV
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked six and one-half years as a machine operator for the employer, a manufacturer of knives. He was discharged on April 21, 1999 (week 17).
On April 17, 1999, Mr. Senglaub, the employer's operations manager, learned that the employe and another worker, Daniel Rustin, had been involved in a fight. The employer's code of conduct provides that fighting can result in disciplinary action up to and including discharge.
On April 20 Mr. Senglaub met with the employe and obtained his version of events. The employe indicated that he was walking towards the break room when a co-worker, Mr. Rustin, was leaving the tool crib. The employee went up to Mr. Rustin and said, "How are you doing?" Mr. Rustin replied, "What the fuck do you mean?" The employe then pushed Mr. Rustin. Thereafter the employe and Mr. Rustin exchanged a number of blows, wrestled on the ground, and choked each other. Mr. Senglaub asked the employe why he had not just walked away from the co-worker when the co-worker got in his face or why he had not called for help, as there were three or four workers within earshot. The employe responded that he did not walk away "because I would have been a wimp."
The initial issue to be decided is whether the employe was discharged for misconduct connected with his employment.
In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:
" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."
The commission finds that the employe's actions in participating in a physical altercation with another worker constitute misconduct. The employe initiated physical contact. The employe was not cornered, and there were other workers in the area that could have rendered assistance to him if he truly felt threatened. Further, the employe's statement that he did not walk away because he did not want to be seen as a wimp is not consistent with the employe's claim that he acted in self-defense. It has been uniformly held that a worker who engages in a physical assault on a co-worker may be discharged for misconduct even though there may have been some provocation. Relerford v. G.M. Assembly Division Janesville General Motors, et al., Dane County Circuit Court, Case No. 139-434, March 20, 1975.
The commission therefore finds that in week 17 of 1999 the employe was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employe was paid benefits in the amount of $3,861.00 for weeks 18 through 30 of 1999, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived.
Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.
DECISION
The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1999, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $3,861.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on April 23, 1999, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.
For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.
Dated and mailed July 30, 1999
rogerro.urr : 132 : 6 MC 670
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did not consult with the administrative law judge as the commission has reversed the administrative law judge because it reached a different legal conclusion when applying the law to the facts. The employer met its burden of proof by the admissions of the employe.
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